Appeal from the Circuit Court of the 14th Judicial Circuit, Henry County, Illinois. Circuit No. 95-CF-318-2. Honorable Larry S. Vandersnick, Honorable Charles H. Stengel, Judges, Presiding.
The dismissal of defendant's successive postconviction petition at the second stage of the proceedings was reversed and the cause was remanded to the trial court, since defendant was deprived of any representation at the second-stage hearing when his postconviction counsel appeared with defendant at the hearing, without filing a motion to withdraw or notifying defendant that he intended to withdraw, and told the court that defendant's petition was without merit, and under those circumstances, the appropriate relief was to allow defendant's appointed counsel to file a motion to withdraw with notice to defendant and give defendant an opportunity to prepare and present his arguments against the motion.
Bryon Kohut (argued), of State Appellate Defender's Office, of Ottawa, for appellant.
Terence M. Patton, State's Attorney, of Cambridge (Dawn D. Duffy (argued), of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices Holdridge and McDade concurred in the judgment and opinion.
[¶1] Defendant, Andres M. Elken, appeals the Henry County circuit court's dismissal of his second-stage successive postconviction petition. Following the dismissal, defendant filed a motion to reconsider on May 29, 2012. The trial court denied that motion.
[¶2] Defendant alleges that the trial court erred in allowing appointed postconviction counsel to withdraw at the second stage of the proceedings, where defendant was not given notice of counsel's intent to withdraw and was denied the opportunity to be heard on the motion or the dismissal of his petition.
[¶3] We reverse and remand.
[¶5] This case involves a rather tortured procedural process that involves two direct appeals and successive postconviction petitions. We include only those facts necessary for an understanding of the dismissal of defendant's successive postconviction petition.
[¶6] On November 7, 1995, defendant (along with five other codefendants) was charged by information with controlled substance trafficking, unlawful possession of a controlled substance with intent to deliver, and unlawful possession of a controlled substance. These charges stemmed from the discovery of over 500,000 grams of cocaine, following a routine traffic stop on Interstate 80. At trial, defendant moved to suppress the evidence found in the recreational vehicle. He argued that he did not understand English to the point that he could knowingly and voluntarily consent to the search, and he was unnecessarily detained for 40 minutes while the officer waited for the canine unit to arrive. The trial court denied defendant's motion to suppress and the matter proceeded to a bench trial.
[¶7] Following the trial, the trial court found defendant guilty of the charged offenses and sentenced defendant to 110 years on the trafficking offense. The court also imposed a $63 million street value fine.
[¶8] On direct appeal, defendant raised issues pertaining to the motion to suppress and the sentence imposed. This court affirmed the conviction, remanded the matter for a new sentencing hearing, and ordered the trial court to apply a $5-per-day presentence incarceration credit toward the fine. See People v. Elken, 309 Ill.App.3d 1092, 764 N.E.2d 608, ...